Tundu Lissu’s comments on judges and the judiciary stated with much gusto in Parliament in July, this year, have caused such a raucous that they seem never to be out of the front pages of newspapers.
Generally editors reserve the hallowed front page to matters considered to be so significant to public interest that they attract the curious to buy the paper. So if the conduct of Editors is anything to go by, the general public is very concerned indeed about the health of the Judiciary. As a legal practitioner, I am personally not at all surprised by this fact because in my experience the relationship between the Judiciary and members of the general public is very personal.
The conduct and decisions of judges and magistrates have a direct and personal impact on the life of the people party to legal disputes. So it is no wonder that the public want to be assured that those empowered to determine matters ranging from their personal freedoms to their proprietary rights, are fit for the job.
This is not political and the matter should have never deteriorated into an unhealthy partisan cat fight, which has resulted in personal recriminations and most recently an unprecedented gagging order issued against the unsuspecting world at large by the Chairman of the Parliamentary Immunities, Powers and Privileges Committee (PIPP). But here we are and now we must deal with the fall out, gagging orders and all.
The Chairman of the PIPP issued a statement during a press conference, which was reported on the front page of the Guardian and page 3 of the Citizen of 21 September 2012 apparently banning the press, and other stakeholders from discussing the competence of judges on the ground that the matter is allegedly being investigated by the PIPP and to discuss the matter would be a contravention of article 100(1) of the Constitution of the United Republic of Tanzania. According to the papers, the Chairman of the PIPP has interestingly advised “wananchi” with views on the matter to submit them to the PIPP.
It is refreshing to note that even in the middle of the election term when our votes have long been counted, seats in parliament have been occupied, parliamentary allowances are being dished out and spent voraciously and election promises have become a distant memory, our parliamentarians recognise that we still have views.
That is where the good news stops, for apparently we are not permitted to express these views publicly on the spurious ground that expressing them is an infringement of Parliament’s rights under article 100 of the Constitution, which provides as follows:
“(1) There shall be freedom of opinion, and debate in the National Assembly and that freedom shall not be breached or questioned by any organ in the United Republic in any court or elsewhere outside the National Assembly.
(2) Subject to this Constitution or to the provisions of any other relevant law, a Member of Parliament shall not be prosecuted and no civil proceedings may be instituted against him in a court in relation to anything which he has said or done in the National Assembly or has submitted to the National Assembly by way of a petition, bill, motion or otherwise”
Article 100 of our Constitution does nothing more than import into our law the British doctrine of absolute privilege for parliamentary speeches, debates and proceedings which was bestowed on the House of Commons in the 17th Century after a long struggle between Parliament and the Crown. Essentially this doctrine immunises all parliamentarians from sanctions, which may be imposed by a court of law and/or the executive on any issue discussed by members of parliament during parliamentary proceedings.
It is a privilege, which is common to legislatures based on the Westminster model. The net result is that a parliamentarian can say and write whatever he wishes about any person without fear of legal repercussion so long as he does so during parliamentary proceedings in the National Assembly. Absolute parliamentary privilege to free speech means that neither our laws on defamation nor our sedition laws apply to parliamentarians during parliamentary proceedings. The rational for this privilege is to allow parliamentarians, who are after all supposed to be the representatives of the people, to discuss whatever matter they believe is of interest to the general public free from fear of legal sanctions, thus allowing for candid and fearless debates within the National Assembly.
In our recent history, the doctrine of absolute privilege for parliamentary proceedings has borne interesting fruit. We have witnessed the fall of the cabinet on 2 separate occasions in the past six years as a result of the power of speech.
However, the absolute privilege to free speech accorded to parliamentarians can be abused and given the fact that neither the courts nor the executive have jurisdiction to sanction recalcitrant members of parliament, parliaments based on the Westminster model, always have a powerful standing committee mandated to investigate and sanction parliamentarians accused of abusing their parliamentary privileges.
In Tanzania, the 2007 Parliamentary Standing Orders empower the PIPP to investigate all matters relating to parliamentary rights and privileges brought to its attention by the Speaker and in addition to investigate matters relating to the ethical conduct of members of parliament.
After Tundu Lissu’s unreserved comments about the Judiciary, the PIPP was tasked to investigate the suitability of his conduct in Parliament. It is a little disconcerting to learn from the media that the Chairman of the PIPP now thinks that he can place a universal injunction on the press and the general public restraining us all from discussing Tundu Lissu’s comments on the Judiciary.
Other than the practical difficulties involved in policing such a wide injunction and the fact that the PIPP lacks the arsenal for sanctioning disobedience, (I am tickled by the image of the Parliamentary Sergeant at Arms dressed in all his finery escorting a bemused citizen to the Police Station for daring to discuss the competency of the judiciary in public and contrary to the orders of the PIPP), there is the fundamental problem that the PIPP does not have the legal jurisdiction to issue the said injunction. Our conduct is sanctioned by the laws of the land and not by Parliamentary Standing Orders.
The PIPP does not have the mandate to investigate members of the Judiciary and neither does it have the mandate to prohibit the general public’s constitutionally guaranteed right to discuss freely the state of our Judiciary. Unlike parliamentarians, the press and the general public are not cloaked with the privilege of absolute immunity to free speech because we are subject to the unfortunate law of sedition, the law of defamation and answerable to the courts for the words we utter or write.
Therefore, it comes as no surprise that the character, qualification, capacity, humanity of the people charged with passing judgment on us is of great concern to the general public and this issue must be addressed systemically and substantively. Warning us to keep quiet will not make this matter disappear and is an anathema to our right to scrutinise public institutions.
As we all know, we have not invented “The Debate on the Judiciary”. We are, but late-comers, to the party, and the debate itself is presently hindered by political machinations. Kenya has been involved in this discourse for over a decade, resulting in the recent amendments to their Constitution and the fearless manner in which they have chosen to scrutinize their judges.
Unlike in Tanzania, in April 2012 during a meeting of the Lawyers’ Association of Zambia, the Attorney General of Zambia Mumba Malila said: ‘We are now living in an age of prevalent unabated judicial controversy, where the doings of the judiciary should be publicly scrutinised and discussed almost as frequently and as with much venom as those of politicians.’
There is a common thread to Zambia and Kenya’s story and that is the political parties that fought for the independence of these two countries have spent time as parties in opposition, and conversely the parties who were in opposition have also spent time in government.
In the heavy-handed and capricious world of African politics, ruling parties have the police and the security services at hand and parties in opposition have only the Judiciary to fall back on. So it may be that “The Debate on the Judiciary” embraced by all political parties in these countries is spurred by self-preservation stemming from an acute awareness that the very survival of a party in opposition may depend on a functioning and effective Judiciary.
Will CCM only learn about the importance of an independent and professional Judiciary after spending time warming the opposition benches in Parliament or does it still have the imagination and gumption, last witnessed during the debate for the introduction of multiparty democracy, to embrace this debate and make changes for everyone’s benefit, whilst it is still in power. The answer to this question will have a direct effect on the quality of our Judiciary.
Ms. Karume was called to the Bar in the Middle Temple and is an advocate of the High Courts of Tanzania and Zanzibar. She is presently Litigation Partner with IMMMA Advocates in Dar es Salaam. Email: [email protected]